Part one of this article discussed the 2019-20 and 2021-22 Supreme Court terms. In the former term (which I referred to as Act I), Chief Justice John Roberts navigated the Court through a series of challenging cases, endeavoring to keep the Court’s institutional reputation above or apart from partisan politics. In the latter term (Act II), Roberts seemed to be outpaced by a Court with six conservative justices, most notably in the Dobbs case that overruled Roe v. Wade and eliminated the federal constitutional right to abortion. By the end of the 2021-22 term, some commentators opined that the era of the Roberts Court was over.
Two years later, to paraphrase Mark Twain, it turns out that reports of the death of the Roberts Court were an exaggeration. By the end of the 2023-24 term, the Chief Justice clearly had re-established himself as the leader of the Court. He wrote decisions weakening the administrative state and protecting the President. During the same term, under his leadership, the Court avoided controversial decisions on the Second Amendment and reproductive rights. Finally, the Court made it clear that the election—not the courts—will determine whether Donald Trump returns to the presidency in 2024.
The 2023-24 Term: Weakening the Administrative State
Act III takes us up to the term that ended in early July. The cases divide into several categories, all consistent with the Chief Justice’s priorities of moving the Court further to the right without drawing significant political flak. First, there were Roberts’ ideological triumphs: the overruling of Chevron doctrine in Loper Bright Enterprises v. Raimondo and expanding the President’s immunity from criminal prosecution in Trump v. United States. Weakening regulatory agencies has been a core conservative project for Roberts ever since he worked in the White House Counsel’s office for President Ronald Reagan.
In Loper Bright, Roberts wrote the Court’s opinion overruling a forty-year-old rule of statutory interpretation articulated in Chevron v. Natural Resources Defense Council. Under Chevron, when a court was presented with a question of how to interpret a statute that either was ambiguous or silent on the issue before it, the court was required to defer to the agency’s interpretation if it was reasonable.
Justice John Paul Stevens’s rationale for the rule in Chevron displayed judicial modesty in requiring courts to defer to agencies in this situation. Agencies were staffed by experts “in the field” while federal judges were generalists. In addition, agencies were more politically accountable than federal judges, who enjoyed lifetime tenure. Within a decade of the Court’s decision in 1984, Chevron deference blossomed after Justice Antonin Scalia championed the doctrine. Congress, responsible for writing the laws that authorize agency action, did not overrule the doctrine but instead legislated against its background.
Nevertheless, none of these points persuaded the Court to retain Chevron deference. Writing for a 6-3 majority, Roberts saw the issue differently: Because issues of statutory interpretation raise questions of law, courts must decide them. In a post-Chevron world, Roberts explained in Loper Bright, an agency still will have the opportunity to persuade the court that its interpretation of the statute is correct; however, judges will have the final say. On your political science chart, draw an arrow shifting power away from administrative agencies under Article II of the Constitution towards the judicial branch under Article III.
Two other cases this term, Corner Post, Inc. v. Board of Governors of the Federal Reserve and Securities and Exchange Commission v. Jarkesy, further illustrate the depth of the Court’s campaign against the administrative state. In Corner Post, the Court enlarged the opportunity for plaintiffs to challenge federal regulations in certain circumstances, holding that the applicable statute of limitations did not “accrue” (or begin) until the plaintiff was injured by the agency rule.
In the case before the Court, this ruling allowed a plaintiff to sue over a Federal Reserve regulation adopted in 2011, well past the statutory six-year limitations period if, as the lower courts found, the clock began to run then. The Court did not agree with the lower courts, however. It noted that the plaintiff did not open for business until 2018 and joined a suit challenging the regulation in 2021. Under the applicable statute of limitations, the plaintiff’s claim accrued before the six-year deadline and therefore was timely. Justice Amy Coney Barrett wrote the Court’s opinion in a case decided by a 6-3 vote.
In her dissent, Justice Ketanji Brown Jackson argued that the Court’s decision “means that there is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face.” She objected that “[a]llowing every new commercial entity to bring fresh facial challenges to long-existing regulations is profoundly destabilizing for both Government and businesses” and “allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline.” Repose? That’s for other defendants, unless Congress revises the pertinent statute.
Jackson concluded by warning about the “tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government.”
In Jarkesy, the Court ruled against the Securities and Exchange Commission (SEC), holding that the agency’s practice of seeking civil penalties for securities fraud “in-house”—that is, in administrative proceedings—violates the Seventh Amendment right to a jury trial. The SEC now must bring such a suit in federal court. The Court’s decision restricted the SEC’s discretion in pursuing fraud claims.
Roberts wrote the Court’s opinion in a case decided by a 6-3 vote. The Court’s ruling may have only a marginal effect on the SEC, which no longer has the option of bringing such a fraud case before an administrative law judge. Of greater significance, and still to be determined, is whether Jarkesy will apply to other agencies authorized to seek penalties for statutory violations.
The three justices appointed by Democratic Presidents dissented in all three administrative law cases and in the presidential immunity case. Even though the political tinge to the Court’s vote in the four cases was unmistakable, Roberts pushed the Court full speed ahead, writing the majority opinion in three. Before turning to the Court’s decisions involving former President Trump, it is necessary to note several decisions showing Roberts’ politically cautious inclinations. There were two types of “political” decisions.
The 2023-24 Term: Avoiding Controversial Decisions on Gun Rights or Reproductive Rights
The first type involved decisions on the merits. Here, the Fifth Circuit played the supporting role of arsonist, allowing the Supreme Court to be reasonable by putting out or at least not stoking the fire. United States v. Rahimi is the leading case for this point, with the Court deciding 8-1 to reverse the Fifth Circuit in ruling that the Second Amendment right to arm oneself does not extend to those convicted of domestic violence. Roberts wrote the Court’s opinion.
Another example was the Consumer Financial Protection Bureau funding case, with Justice Clarence Thomas writing the Court’s 7-2 decision reversing the Fifth Circuit’s attempt to hobble the agency on the grounds that Congress unconstitutionally funded the agency through the Federal Reserve rather than annual appropriations. By reversing the Fifth Circuit in these cases, the Court showed that there were limits to how far and how fast it would rework the law.
The other type of political decision by the Supreme Court this term harkens back to what Professor Alexander Bickel called the “passive virtues,” instances in which the Court avoids deciding a case on the merits. In cases involving reproductive rights, the Court ducked. Pro-life plaintiffs sued the Food and Drug Administration (FDA) over its approval of mifepristone, an abortion medication. They succeeded, in part, in the lower courts, but the Supreme Court reversed on procedural grounds. Justice Brett Kavanaugh wrote the opinion for a unanimous Court holding that the plaintiffs did not have standing—had not suffered a legal injury—to sue the FDA.
Similarly, in the Idaho emergency abortion case, involving the conflict between federal law and state law over the availability of abortion in certain emergency situations, the Supreme Court dismissed the appeal rather than addressing the merits of the parties’ contentions. With these decisions, the Court avoided making a substantive decision on reproductive rights and kept Dobbs on the down low this election year—an apparent acknowledgment, belatedly, of the correctness of Roberts’ more incremental approach to dismantling Roe.
The Supreme Court’s Unmistakable Message about Donald Trump: Voting, Not Litigation, Will Determine Whether He Is Re-elected in 2024
There was one other defining theme of the Roberts Court in its past term: If you don’t want Donald Trump to be President, don’t litigate or prosecute—vote. In two very different cases, the Court ruled decisively in favor of the former President. In March, less than a month after oral argument, the Court addressed whether Colorado could exclude Trump from the Republican Party primary ballot on the grounds that he had “engaged in insurrection.” The Colorado Supreme Court’s decision rested on section 3 of the Fourteenth Amendment, adopted after the Civil War.
The Supreme Court reversed, keeping Trump on the ballot. Though all nine justices agreed with this decision, the Court did not speak in a unified voice through a single opinion. In a per curiam opinion that swept broadly, five justices held that the only way to enforce section 3 was through federal legislation. Justice Barrett wrote a brief concurrence saying the question of whether congressional legislation is the only way to enforce section 3 was not before the Court. Justices Sotomayor, Kagan, and Jackson elaborated on this point in their concurrence, reminding the Court that, as Chief Justice Roberts wrote in Dobbs, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” The message of the per curiam opinion was unmistakable: No more section 3 lawsuits this election year.
Then, on July 1, more than two months after oral argument, the Supreme Court decided the presidential immunity case, with Chief Justice Roberts writing the Court’s opinion in a 6-3 vote along ideological lines. (To be complete, Justice Barret did not join one part of the majority decision.) The Court expanded the President’s immunity from prosecution and made it virtually impossible for Special Counsel Jack Smith to bring his election interference case against Trump to trial before the election. As was noted when the decision was issued, neither Justice Sotomayor nor Justice Jackson included the phrase “respectfully” when they dissented; indeed, Sotomayor concluded, “With fear for our democracy, I dissent.”
After the Supreme Court decided the presidential immunity case, the term was over and the verdicts on Chief Justice Roberts came in. Writing in the New York Times, Adam Liptak stated that “[t]yo years” after Dobbs, “things are looking up for the chief justice” and noted that “[h]e assigned himself an unusually large proportion of the term’s majority opinions in the biggest cases,” including four discussed in this article. In a wrap-up on the Court’s term on National Public Radio, Professor Stephen Vladeck noted that Roberts “the institutionalist[]” was “nowhere to be seen.” After this last term, it is clear that the Supreme Court—and the rest of us—are playing by the Chief Justice’s very conservative rules.
